Ex Parte Northern Pacific Ry. Co. 280 U.S. 142 (1929)

U.S. Supreme Court

Ex Parte Northern Pacific Ry. Co., 280 U.S. 142 (1929)

Ex Parte Northern Pacific Railway Company

No. 21, Original

Return to rule presented November 25, 1929

Decided December 2, 1929

280 U.S. 142

ON PETITION FOR A WRIT OF MANDAMUS

Syllabus

In a suit in the district court to restrain state officers, by interlocutory and permanent injunctions, from enforcing an order affecting railway rates upon the ground that the order conflicts with the federal Constitution and laws, when the plaintiffs apply for an interlocutory injunction on that ground and the district judge grants a temporary restraining order to be effective until such application shall be determined, it is his duty under Jud.Code, § 266 immediately to call two other judges, one of whom shall be a circuit justice or a circuit judge, to assist him in hearing and determining such application, and neither he nor another district judge, in the presence of such application and when it is being pressed, has jurisdiction, sitting alone, to entertain a motion by the defense to dissolve the temporary restraining order or a motion by the defense to dismiss the bill, or jurisdiction to dismiss the bill on the merits. P. 280 U. S. 144.

Petitions for a rule directing the Honorable George M. Bourquin and the Honorable Charles N. Pray, judges of the district court for the District of Montana, and the

district court for that District, to show cause why a writ of mandamus should not issue to set aside a decree dismissing the petitioners' bill of complaint, and further directing Judge Pray to call in two other judges to assist him to hear and determine petitioners' application for an interlocutory injunction. The case was heard on the original and supplemental petitions and the return to a rule to show cause issued to the two judges. The rule is made absolute.

PER CURIAM.

This is a petition for a writ of mandamus. A rule to show cause was issued, and a return has now been made to the rule. From the petition and the return, the facts are shown to be as follows: the Northern Pacific Railway Company and three others brought a suit in the district court for the District of Montana against the Board of Railroad Commissioners of that state and others to prevent the enforcement of a rate order made by the board, the objection urged against the order being that it was in conflict with the commerce clause of the Constitution of the United States and with certain provisions of the commerce laws of Congress. The plaintiffs applied for a temporary restraining order and for an interlocutory injunction. District Judge Pray granted a temporary restraining order which was to continue in force "until the plaintiffs' application for an interlocutory injunction be heard and determined by three judges as provided by statute." Afterwards, but before three judges were assembled to hear the application for an interlocutory

injunction, District Judge Bourquin, sitting alone, entertained a motion by the defendants to dissolve the temporary restraining order, and also a motion to dismiss the bill on the merits. The plaintiffs objected that a single judge was without authority to entertain or act upon either motion, but Judge Bourquin overruled the objection, sustained the motion to dismiss, and entered a final decree of dismissal. Of course, the decree, if valid, operated not only as a revocation of the temporary restraining order, but also as a denial of the application for an interlocutory injunction.

Manifestly the suit was within the terms and spirit of § 380, Title 28, of the United States Code. When Judge Pray granted a temporary restraining order to be effective until the application for an interlocutory injunction should be heard and determined, it became his duty under that section immediately to call two other judges, one of whom should be either a circuit justice or a circuit judge, to assist him in hearing and determining the application for an interlocutory injunction. Not only so, but the section as amended by the Act of February 13, 1925, c. 229, 43 Stat. 938, extends the requirement respecting the presence of three judges to the final hearing in such a suit. Under our decisions construing and applying the section, Judge Bourquin, sitting alone, was without jurisdiction to hear either the motion to dissolve the temporary restraining order or the motion to dismiss the bill on the merits. In the presence of the application for an interlocutory injunction, which was at no time withdrawn but constantly pressed, a single judge, whether Judge Pray or Judge Bourquin, was as much without authority to dismiss the bill on the merits as he would be to grant either an interlocutory or a permanent injunction. Our decisions leave no doubt on these points. Ex parte Metropolitan Water Co. of West Virginia,220 U. S. 539; Cumberland Telephone & Telegraph Co.

It follows that the rule against the respondents must be made absolute with directions to them to vacate the decree of dismissal entered by Judge Bourquin and to take immediate steps for assembling a court of three judges to hear and determine the application for an interlocutory injunction conformably to § 380. We assume it will not be necessary to issue a formal writ.

Rule made absolute.

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